Antonin Scalia

Can 'Scarcity' Justify the FCC's TV Censorship?

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In my column today, I note that the Supreme Court upheld content-based regulation of broadcasting in FCC v. Pacifica on the grounds that the medium is "uniquely pervasive" and "uniquely accessible to children," premises that have been invalidated by technological developments in the three decades since the case was decided. In defending the ban on "broadcast indecency," the Obama administration offers a different rationale: Speech restrictions are part of the deal when the government allows a broadcaster to use "the public airwaves." Here is how Solicitor General Donald Verrilli put it during oral argument yesterday:

Respondents in this case have for years benefited enormously from their free and exclusive use of public spectrum. They argue, however, that neither Congress nor the commission may as a condition of their licenses require that they refrain from broadcasting indecent material when children are most likely to be in the audience. 

Justice Antonin Scalia seemed receptive to this way of looking at the FCC's censorship, saying:

These are public airwaves. The government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth.

The "public airwaves" argument, which Fox and the other TV networks challenging the FCC's regulations call "a hail-Mary attempt to salvage [the FCC's] indecency-enforcement regime," was not cited in Pacifica. But it does play a conspicuous role in Red Lion Broadcasting v. FCC, the 1969 decision that upheld the "fairness doctrine," a policy of requiring broadcasters to provide balanced coverage of public issues (which the FCC abandoned in 1987 because of concerns that it had a chilling effect on political speech). "Because of the scarcity of radio frequencies," the Court said, "the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium."

As Fox et al. note, "the scarcity doctrine has never been the basis for indecency enforcement." Furthermore, the doctrine "has been subjected to withering criticism" during the last few decades. All economic resources are scarce, and all forms of communication use economic resources, so it is hard to see how scarcity can justify restrictions on one medium of speech that would be unconstitutional if applied to any other. The proliferation of TV and radio outlets since 1969 further undermines the scarcity rationale. "There are more than twice as many over-the-air broadcast stations than there were 40 years ago," the networks note, and "the number of additional media outlets has exploded during that time with the development of cable and satellite television and the Internet."

Justice Anthony Kennedy put his finger on a deeper problem with this argument yesterday when he called the government's reasoning "circular": We license broadcasters so we can regulate them, and we can regulate them because we license them. Instead of treating broadcasting rights as transferable property, the government chooses to give broadcasters revocable licenses and then cites that decision as grounds for further meddling. By similar logic, the government could nationalize the paper industry or the silicon chip industry, then use the resulting power to dictate the content of newspapers or websites.

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  1. I would like to take a moment to thank that big-government-loving tax-and-spend free-market-hating Herbert Hoover for his role in creating the FCC to prevent the courts from using common law and Lockean principles to establish the rules governing radio frequency usage.

  2. So, if I’ve got this right, scarcity can’t save content regulation in the form of the fairness doctrine, but can save content regulation in the form of the obscenity rules? Is that about it?

    I suppose, since the government is entitled to insist on a modicum of decency on the “public airways”, then it could also pass a law against cursing on streets and sidewalks.

    Funny, too, how those aren’t the government’s airways, they the public’s airways, but the government gets to tell the public what to do in them.

    1. Your mistake is in drawing a distinction between “the public” and “the government”. Scalia, along with 99.9% of everyone else in gov’t service, sees those two entities as entirely analogous – just two different phrases for the same thing. After all, you vote – therefore you ARE the state, and the state IS you. Public = government, QED.

      I realize you pointed this out in an earlier thread, but it also bears repeating here.

    2. It’s the same as public roads and public parks; they technically belong to the public but are administered by the government on the public’s behalf.

      Like roads and parks, the spectrum can’t be left completely unmanaged or it will quickly become useless due to the tragedy of the commons.

      1. Gawrsh, how was the original tragedy of the commons averted? I don’t recall any bureacracies or regulatory tomes . . . .

        1. Private property systems won’t work if you want something to be open to the public perpetually (parks) or to work seamlessly without having to pay tolls every block (roads).

          Applying private property ideas to the spectrum is going to be problematic too. In the case of chattel property “possession is 90% of the law” settles most disputes, while in the case of real property, trespassing can be strongly discouraged and policed by the property owner being present on the property. Disputes over “spectrum property” admit no such usual enforcement mechanism.

          1. private property rules could easily be applied to the spectrum. can you please explain why they couldn’t be? ip and many other types of property are not tangible, but still subject to private property rules.

            1. Electromagnetic radiation is different. It would have to be regulated and policed by the government whether it’s a private or public.

              If, for example, you bought 101.3 on the FM band, does that mean you bought it for the entire nation? Or just at a certain wattage? How do you deal with interference, either accidental or intentional?

              What about spectrum for valid public purposes, like emergency weather broadcasts and police radio?

              Also, avoiding monopolies of spectrum is a valid public concern. This is a static resource that needs oversight by a body that is under at least nominal public control.

              1. So? Real estate, IP, and every other type of property is defined and regulated by the government. It would be quite simple to draw up deeds or other legal instruments that define the scope of the ownership. IP lawyers do this every day. Congress could also pass laws that regulate when one can interfere, what the damages and causes of action are for violations, etc. Disputes would get worked out in court or in arbitration.

                For emergencies, I can see a few regimes. The government could reserve some to itself. Or it could have a right to invade on private spectrum for particular purposes, with compensation. Or it just buy and pay for it when it needs it.

                There are plenty of static resources that are controlled through private property systems (e.g. land). Also, anti-trust laws wouldn’t cease to exist.

            2. If, for example, you bought 101.3 on the FM band, does that mean you bought it for the entire nation? Or just at a certain wattage?

              I imagine your deed would specify this. I see no reason why the language in the current licenses couldn’t be carried over into title documents.

              How do you deal with interference, either accidental or intentional?

              Track it down, have your lawyer give a nasty cease-and-desist letter, follow up in court.

              This is not hard.

              What about spectrum for valid public purposes, like emergency weather broadcasts and police radio?

              What about it? The state can have its own slice of spectrum, and in a bona fide emergency could make use of private spectrum via requisition.

              1. Track it down, have your lawyer give a nasty cease-and-desist letter, follow up in court.

                This is not hard.

                Actually it is, particularly if interference is intermittent and there’s more than one violator (or a moving violator)

            3. ip and many other types of property are not tangible, but still subject to private property rules.

              Yes, and IP enforcement is a bitch. Copyright infringement is much, much more commonplace than trespassing for that reason.

              Spectrum wouldn’t be quite as hard, because it’s easier to detect and track down infringement, but it’s going to be much harder than enforcing trespassing laws regarding real property.

      2. they technically belong to the public

        Actually, they technically belong to the government. Seriously, if you look at the deed, it won’t list “The Public” as the owner.

        1. Then again, one could argue that the government is not empowered to own any property for no such specific authorization is to be found in the federal constitution and I doubt that any such explicit green light can be found in many state constitutions.

          1. R C, I am sure that you know that banks and title insurance companies insist upon certifications from corporations, limited liability companies and trusts attesting to the fact that the entity has been empowered to enter into and consummate the contemplated transaction and that the officer / trustee has the authoritah to bind the entity to the transaction.

            You would have to admit that the charter documents of corporations, limited liability companies and trusts are a little bit more clear than our constitutions as to setting forth the authority for the entity to engage in the acquisition and disposition of real property.

          2. “”for no such specific authorization is to be found in the federal constitution “”

            When does that arguement ever win?

            1. All the time on these here tubes.

              1. Libertymike has never been defeated in his own head. And that’s all that matters, apparently.

            2. It certainly won’t win when its manifestly wrong.

          3. “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;”

            1. To exercise exclusive Legislation in all Cases whatsoever, …, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”

              And many of powers, such as providng for organizing and equipping an army, etc., necessarily imply that the government can own property (and the necessary and proper clause grants such powers)

          4. You can’t apply the enumerated powers doctrine to state governments. It’s present in the federal constitution because the state governments didn’t want the new federal govt to encroach on their powers. The state governments, on the other hand, have plenary powers unless their constitutions specify otherwise.

      3. Unmanaged and scarcity are two completely different things. ICANN seems to manage OK.

    3. The government (local levels at least) already has laws in place to regulate obscene behavior on streets and sidewalks. The restrictions are more permissive (you can curse, but not stroll about in the nude or have sex on a public sidewalk [in most cities]) but they do exist. The court upholding anti-obscenity laws for the radio and tv are not ridiculous as long as the broadcast spectrum is considered public. Whether it should be considered public, on the other hand, is another issue entirely.

      1. Sure, sure. My point was that Scalia seems to be saying that any public way can be subjected to the same content regulations as the FCC wants to impose on broadcasters.

    4. But the government isn’t supposed to be able to regulate content. There’s some sort of prohibition against that.

  3. “By similar logic, the government could nationalize the paper industry or the silicon chip industry, then use the resulting power to dictate the content of newspapers or websites.”

    Just you wait.

    1. Would you like a SOPA whilst you are waiting?

    2. The hemp industry has essentially been nationalized.

  4. I am Antonin Scalia. I am fat. I am Italian. I love the police. And I am on the Supreme Court. Deal with it. And if you didn’t go to a top school, it is not like you are that bright anyway.

  5. The FCC has a legit purpose, but it’s not playing moral police.

    1. Hey the FCC is top men. They went to the top schools. They know more than you. The air waves are public. We can just depend on their professionalism not to do any harm.

    2. The FCC has a legit purpose
      I dispute this.

      1. The interference thing is tolerable. I mean, if you had a pacemaker or something, you’d probably consider a fairly useful function of government.

  6. Is speech via a public forum, protected under the 1st amendment?

    If so, Scalia is being a douchebag.

    1. Why does the FCC have a legit purpose?

      1. Preventing interference between broadcast signals.

        1. Oh, I guess I didn’t realize that only the public sector can do this.

          1. Only the govt has the authority to coercively stop signal interference by going to the source and cracking some skulls.

            1. Or to initiate and sustain signal interference.

            2. Only the govt has the authority to coercively stop signal interference trespassing by going to the source and cracking some skulls.

              Seriously, I am not following why spectrum couldn’t be sold off, in fee simple, and the same sorts of property rights enforcement that we use everywhere else be applied to it.

              1. In the 1920’s the courts were using common law to adjudicate interference claims. The guy who started broadcasting on a chunk of frequency for some area around the transmitter became the owner of that frequency-location.

                Hoover went apeshit when the first case hit the courts: progressives can’t stand emergent order without top-down control.

                1. their rationale is that the broadcast airwaves belong to the (collective) people and thus it is the job of govt. to dole out sections responsibly, to make sure that diversity of viewpoints exist (see: fairness doctrine), that no nasty stuff exists (see: decency laws) etc.

                  imo, it’s largely going to be an anachronim anyway. i seriously doubt broadcast tv in another 15 yrs will be anything but a rarely watched relic.

              2. Seriously, I am not following why spectrum couldn’t be sold off, in fee simple, and the same sorts of property rights enforcement that we use everywhere else be applied to it.

                Because overlapping property rights are a friggin mess.

                Example: I’m on my farm using a walkie-talkie talking with my son who’s driving a tractor on our broccoli field. The signal is weak enough that it doesn’t leave my property.

                Now, if someone else has a deed to that frequency we’re using in a 100-mile radius including my farm, am I “trespassing”?

              3. the same sorts of property rights enforcement that we use everywhere else

                “everywhere else” meaning physical objects and land? Which comprise a tiny, tiny speck in the cosmos of human endeavor?

        2. How does content regulation advance that purpose?

          1. It doesn’t. Just saying the FCC has some legitimate raisin da tray.

            1. Wingo.

        3. like IP addresses and domain names?

      2. Providing some sort of order to the use of the frequency spectrum. Of course some other organization could do it too.

  7. The intellectual underpinnings of the scarcity dcotrine are scarce.

    1. Which is why the government needs to regulate the scarcity doctrine.

  8. i have seen this public airwaves crap ENDLESSLY on DU Kos, etc. to justify the fairness doctrine (which unsurprisingly, a lot of libs want back)…

    i have seen several propose that “faux news” be subject to same. invariably somebody points out fox is on cable, and hilarity ensues.

    i’d almost be willing to say ;’fuck broadcast tv” since almost has cable, let the FCC play their stupid games, as long as they fuck off when it comes to cable.

    i would not be surprised if 10-15 yrs from now, there is NO broadcast television. iow, it’s ALL cable

  9. It is interesting when people claim that property rights are not fundamental to every other right, then look at the logic of the argument made in favor of the FCC to regulate content. The government has effectively prevented any establishment of property rights in brodcast due to dubious claims of scarcity. Therefore no broadcaster owns their piece of spectrum, therefore the government controls it. The government even claims to especially own it since it so charitably has not even required rents on it.

    When someone tells you property rights are unimportant to the maintenance of your other liberties, to that person to go to hell, you can see right here that lack of property rights puts even free speech in jeopardy.

    1. I don’t mean to get all White Indian here, but in a very real sense, private property introduces new excuses for violence.

      Establishing novel property rights is establishing new justifications for violence. Perhaps we should be more careful rather than throwing “private property” at every problem.

  10. okay matt is getting some pts from me now.

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